KWAN KONG CO LTD v. TOWN PLANNING BOARD

IN THE COURT OF APPEAL

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(Usual Circulation with consent of the parties)

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JUDGMENT

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Liu JA:

1. The Town Planning Board was challenged in judicial review before Waung, J. on its power to hear objections to plans, primarily in the context of Article 10 of the Bill of Rights. Impartiality of the Board was also questioned. The applicant failed in the challenge before Waung, J. and it seeks to appeal.

2. The requisite documents under Order 59 r 5(1) para. (a) & (b) were, I am told by Mr Lee, leading counsel for the applicant, duly lodged. Thereupon the Registrar filed a copy of the Notice of Appeal and he (not, be it noted, the appellant as in England) caused the appeal to be set down in the list of appeals pursuant to Order 59 r 5(2). In breach of Order 59 r 5(4), the applicant failed to give notice of the setting down of its appeal to the respondent on whom a copy of the Notice of Appeal had been served. The utility of Order 59 r 5(4) as stated in the last sentence of the last paragraph (marginal reference 59/5/10) at p. 976, 1995 White Book Vol. 1 is:

"The date on which a respondent receives notice from the appellant that the appeal has been set down may be relevant for the purposes of determining the time limit for lodging a respondent's notice with the civil appeals office (see rule 6 (4); para. 59/6/7.)"

3. Order 59 r 6 (4) of the English Rules prescribes periods within which a respondent's notice must be lodged. One of these prescribed periods is four days after the day on which the party serving a respondent's notice was notified of the setting down under Order 59 r 5(4) of the English Rules.

4. Our Order 59 r 6(3) is parallel to Order 59 r 6(4) of the English Rules, but our Order 59 r 6(3) prescribes periods for lodging a respondent's notice with reference only to the service of a notice of appeal on the respondent. Our periods are not linked to a notice of setting down. In this direction, it would seem that our Order 59 r 5(4) has a narrower field of operation. Counsel are unable to assign a meaningful purpose to our Order 59 r 5(4).

5. A Practice Direction was issued on 10 January 1986 for regulating the manner in which a date for the hearing of an appeal may be fixed. That Practice Direction contains no reference to any compliance with Order 59 r 5(4). I am told by Mr Cooney for the Board that it has been the practice in the Registry here that the Clerk of Court would not fix a date for the hearing of an appeal set down by the Registrar unless the notice of setting down has been given by the appellant to the respondent pursuant to Order 59 r 5(4). That standing practice appears to be arguably rational because it would not be wholly unreasonable to presuppose that the setting down stage as envisaged by Order 59 r 5 should be first concluded before the Clerk of Court may go forward with listing appeals according to this Practice Direction.

6. In this application, it is acknowledged by leading counsel for the applicant that for listing the appeal, the applicant needed to give the notice under Order 59 r 5(4) within four days after the Registrar setting the appeal down. No particular time for fixing an appeal hearing date is laid down. A respondent may, of course, urge or make a demand upon the appellant to fix a date of hearing with promptitude on pain of dismissal. In this case, there was no complaint of delay that a hearing date had not been fixed; nor had it been claimed before the parties' disagreement giving rise to the instant application that the applicant's tardiness had caused prejudice. It was only when the applicant approached the respondent for providing a joint estimate for the hearing time of the appeal on 11 January 1996 that the respondent advanced the contention on the erroneous basis that the applicant had failed to lodge the requisite documents under Order 59 r 5(1). Those documents had in fact been duly submitted. Merely Order 59 r 5(4) was unobserved by the applicant's omission to serve a notice of setting down.

7. The respondent has not disclosed any irreversible commitments pending the resolution of this appeal. It is also fair to say that no evidence has been led to suggest that but for the applicant's delay, the respondent would not have pursued the matters, business or arrangements set out in an affirmation filed on the Board's behalf by Mr Lo Chai Man. Mr Lo has given particulars of objections entertained and plans approved by the Town Planning Board in the interim. But all these were part of the duties which the Board was obliged to discharge under the Ordinance irrespective of the applicant's inaction. Counsel for the respondent, Mr Cooney, has further directed my attention to regular and other procedural steps taken in the meantime, but there is no question of the respondent having been nulled into believing that the applicant was content with the judgment of Waung, J. or abandoned the proceedings in this appeal. Also, I am not impressed by the submission made on the Board's behalf on what is described as the prolonged overall uncertainty brought about by the BOR challenge. Nevertheless there was a long delay and a further period of delay must necessarily be caused by an extension granted by this Court. I have referred to the little impact arising from the applicant's failure to fix an early hearing date and the respondent's indifference to the omission. It has not been successfully demonstrated that the over 3 extra months' delay has materially affected the respondent's obligations, rights or other undertakings. On account of the late change in counsel's bearings, this court is left with the impression that submissions on Order 59 r 5(4) have not been exhaustively made. Assuming that the same four criteria for extending time for lodging the requisite documents under Order 59 r 5(1) would apply, it must be recognised that the period which has elapsed is no small delay. The reason for delay grounded on an oversight is less than meritorious. But for what I have said, it would seem that non-compliance with Order 59 r 5(4) is of no great moment. There are, indeed, matters of general importance which would require more in-depth consideration in the interest of the public. I am persuaded, in the history of judicial approaches as given to this court by leading counsel for the applicant, that its chances of success are not unfavourable. No real prejudice has, in my view, been shown. Doing the balancing exercise as best as I could, leave sought in the applicant's summons should in my judgment be granted.

8. I order therefore that the applicant do have 3 days from to-day to serve notice of setting down of its appeal on the respondent and all other appropriate parties, if any. Subject to what counsel have to say, costs of this application ought to go to the respondent.